Against Monopoly

defending the right to innovate


Monopoly corrupts. Absolute monopoly corrupts absolutely.

Copyright Notice: We don't think much of copyright, so you can do what you want with the content on this blog. Of course we are hungry for publicity, so we would be pleased if you avoided plagiarism and gave us credit for what we have written. We encourage you not to impose copyright restrictions on your "derivative" works, but we won't try to stop you. For the legally or statist minded, you can consider yourself subject to a Creative Commons Attribution License.

earlier posts

Testing 1-2-3

In the previous post, we considered the proposal that every patent filing ought to be tested to see if it provides the two complementary benefits of being non-obvious and enabling. Let's see how such a requirement might work.

The idea is that every application to be examined shall be exposed to empirical testing to establish whether the supposed invention disclosed is actually novel, and whether the description is sufficient to enable it to be practiced. The empirical test uses the services of persons taken to be of ordinary skill in the relevant art. The number and type of persons selected may be chosen by the applicant, but it is a strict requirement that the same persons must participate in both the test of novelty and the test of enablement. (This prevents the use of persons of minimal skill and knowledge to examine novelty, and great expertise to demonstrate enablement.) The test may be performed during examination or after a patent is granted, but must precede any litigation involving a granted patent. (Note that the longer the applicant chooses to wait, the more risk there is that everyone will know about the supposed invention, generally by independent means rather than from the applicants. So it's actually to their advantage to do this early in the process.) The persons involved may be compensated by the applicant, but the compensation shall be arranged in advance, and provided at the completion of each stage as described below, without consideration of the contents of the reports in question. Participants should sign a statement declaring that they have no stake in the matter in question other than the agreed-upon compensation, and will diligently pursue both phases of the work with equal effort and attention.

In order to test novelty, the persons selected shall be presented with a statement of the problem to be solved and any constraints on the solution. It's not entirely trivial to figure out how to do this. Some patents have a nice background description and problem statement as part of the specification. Others jump right into their supposed invention, without even clearly saying what problem it is supposed to solve. A first cut is to have the relevant patent examiner provide a problem statement, based on the examiner's understanding of the specification, within a reasonable time after a request from the applicant. It may simply be extracted from the specification, if in the examiner's judgment the specification contains a clear problem statement that does not include the inventive method or apparatus. But in cases where that doesn't work, the examiner can use her or his own judgment about how to frame the problem without describing the applicants' solution.

In addition to the problem statement, the persons selected should be provided with any background discussion in the specification that describes relevant prior art, any prior art cited by the applicants or the examiner, and access to any other relevant art they require. Note that the access to art should NOT be constrained by the date of filing of the application, again in order to encourage the applicants to pursue an empirical test at the earliest possible date, since published art after the date of application may anticipate the described invention.

The test personnel shall be provided with whatever time and resources the applicant believes are needed to pursue a solution to the problem posed, with the proviso that whatever time and resources are provided for the examination of enablement must also be provided for the examination of novelty, and vice versa. This prevents the applicant from giving the team (say) 1 hour to find solutions to the problem, equipped with a slide rule and a notebook, and six months and millions of dollars of equipment to implement the described invention.

Once the specified initial phase is completed, the persons involved shall record their proposed and/or demonstrated solutions to the problem in question. They shall then be provided with the full patent specification, but NO other additional resources. Their responsibility is to practice the described invention, aided by the specification, and the same prior art and resources provided to solve the problem in the absence of the disclosure of the purported invention in the spec. The same people, the same calendar and labor time, and the same resources, shall be made available as for the initial examination of novelty.

A participant in the first stage may become unavailable for the second stage (due to personal reasons, business necessity, accident, etc.) but they shall not be replaced with any other person, though any notes, documents, or other work product they produced in the first stage may be used by the other participants in the second stage. A final report shall detail the extent to which the participants were able to practice the invention described in the specification. Any work product -- that is, any code they wrote, anything they built or modified, any other physical results of the project -- should also be preserved and available as evidence in the case of subsequent litigation.

The result of both stages shall be made available to the relevant examiner (if the patent application is still in prosecution at the completion of this exercise), and become part of the file wrapper in any case. The results of both stages must be completed before any litigation can be initiated based on a granted patent, and must be entered as evidence in any such litigation, and made available unedited to the jury in such litigation. The work product should be available for examination by representatives of the two sides in any litigation. The persons performing the two tests shall be obligated to provide (at least) deposition testimony, if requested by either party, for which they shall be compensated in at least the same fashion as for the work performed in the project, the cost of such compensation to be disclosed to the court and equally divided between the plaintiff and defendant.

In the next post we'll look at the various benefits and challenges of implementing this non-trivial change in the way patents are examined. But meanwhile I have to go see how the Giants are doing...

Does Empirical Mean Pertaining to Empires?

Non-obviousness and enablement are the two complementary aspects of the idea that a patent has social value: without the patent a person of ordinary skill cannot practice an invention, but with the patent they can. But how do we know if and when this is true?

The answer is rather disheartening. Non-obviousness is tested by how an examiner feels about claims. We noted in the previous post that this is a strange and short-sighted way to think about an invention, but what's worse is that the when real world provides us a falsification of the examiner's decision, it is treated as a crime. When a patent has been granted, and then another person discovers and practices the claimed invention, they can be sued for infringement, even if they can demonstrate that they had no knowledge of the patent and no other means of deriving their result from its inventors. Upon first glance this is a rather bizarre result, since the fact that another person has discovered the invention unaided means that the first part of the patent compact has been shown to be inapplicable: the patent was not needed to practice the invention. The invention was obvious, the examiner got it wrong, and the patent is invalid. But that's not the way the law works. So not only do we not test the belief in non-obviousness during examination, we willfully ignore subsequent evidence that the examination was incorrect. [1]

Enablement is worse. It plays no role in examination and usually also in litigation. The America Invents act has even abandoned the requirement that the best mode of practice known to the inventor be disclosed, since lack of such disclosure no longer has any effect on validity. This is a puzzling result for an engineer (like me) who actually makes things, because we know from long and painful experience that there are lots of good ideas but very few that actually work the way you think they will. Attorneys and judges basically assume that everything is ok when enough text has been recorded, even if the text is gibberish. This is because they never have to ship product.

There's no reason for this situation, other than the legal profession's aversion to empirical data. For a brief period in the 19th century, inventors were required to provide a working model with their application. The practice was terminated because the patent office ran out of room for all the stuff, not because it was a bad idea. A patent applicant is asking for a monopoly. We don't have to give it to them. The burden should be on them to PROVE by empirical testing that they have satisfied the two complementary requirements for receiving their right to exclude.

This isn't that hard to envision. The European Patent Office presents the following standard for judging inventiveness:

"Is there any teaching in the prior art, as a whole, that would, not simply could, have prompted the skilled person, faced with the objective technical problem formulated when considering the technical features not disclosed by the closest prior art, to modify or adapt said closest prior art while taking account of that teaching [the teaching of the prior art, not just the teaching of the closest prior art], thereby arriving at something falling within the terms of the claims, and thus achieving what the invention achieves?"

So all we have to do is validate the "would, not could" standard by getting some folks together, giving them the problem, and seeing what they do in fact come up with -- and then handing them the patent and seeing if it makes a difference. In the next post we'll present some more details about how to do this, why we ought to, and where to use the resulting knowledge.

NOTES 1: A "prior rights" defense is now allowed in the US when the invention in question has been in use by the accused infringer prior to the filing of the accusing patent. The user retains the right to use the invention, but the patent is still not invalidated, even though it was shown to be so obvious that someone invented it before the person who filed.

Whatever Happened to Peer Review?

Oooops, conceptual typo.

Aaaack, blew it again.

Third time's the charm:

There. Dull but relevant.

Peer review is the process of grabbing people who are familiar with a field to look at a paper or book before it gets published. It has been used in various forms for a long time in the sciences; Wikipedia provides a nifty history of the process. While 19th-century reviewers were often journal editors or staff, in the twentieth century reviewers were generally folks who had themselves published papers related to the one under consideration, the reviewers being recruited by journal editors. In the modern crowd-sourced world, journals are experimenting with open reviews, in which an article is published and then reviewed by whoever is interested, with the reviewers' comments becoming part of the publication.

A limited form of peer review, known as the Peer-to-Patent project, has already been tried by the US Patent Office. A first version ran in 2008, and a revised project ran from October 2010 to September 2011. Both were administered in cooperation with the New York Law School, and were limited to certain areas of art, including software-related patents, and later biotechnology, and speech recognition. Patents submitted to the program got earlier review as a reward. Smaller related projects have also been run in Australia and Japan. Most importantly, the reviewers were limited to submitting prior art they thought was related to the patent, and optionally annotating the art to help an examiner.

NYLS published a couple of anniversary reports (Peer to Patent home page). The program was also evaluated in some detail by students James Loiselle, Michael Lynch, and Michael Sherrerd at Worcester Polytechnic Institute ("Evaluation of the Peer to Patent Pilot Program"). While various administrative problems were encountered, even this limited program clearly contributed to the ability of examiners to access relevant prior art. At the very least, Peer-to-Patent ought to be revived and extended to all areas of art.

However, the process as it has so far been tried treats the public as servants assisting examiners but exercising no judgment. Peer review in the sciences may leave the final decision to an editor, but encourages reviewers to be full participants in the intellectual endeavor of evaluating the submitted work. As we described in the previous post, it is the focus on comparing claims to one or two prior publications, rather than actually reading and comprehending the specification, that gives rise to many of the absurd results we see from the patent system. In order to make peer review contribute fully to the patent process, we need to realize that people skilled in the relevant art are not just a theoretical legal construct but a reality, and ensure that they contribute (hopefully thoughtfully) to the process of examination. We therefore propose the following elaborated peer review process.

Every patent application should be subject to obligatory peer review to supplement the existing examination. The pool of reviewers may be administered by the USPTO, or administered by professional organizations relevant to specific arts (such as the IEEE for electrical and computer engineering) as representatives of the USPTO. To ensure an adequate pool of qualified reviewers, the USPTO should require that a person cannot file a patent application unless they have also registered to act as a reviewer. (This particular provision, at least, is likely to require legislation. I never said reform was easy.) An alternative, more stringent condition, would be that any would-be applicant must have performed at least (for example) three reviews of other people's applications in the previous year. The status of international applicants may be arranged through suitable agreements, such that they can fulfill the same duties as US citizens, while subject to the laws of their country of residence.

The reviewer should be bound to examine the specification and provide their best objective evaluation of:

• NOVELTY: whether a novel invention is described;

• ENABLEMENT: whether the invention is described in sufficient detail to allow them (or anyone else of ordinary skill) to practice the invention without undue experimentation;

• UTILITY: whether the described invention is useful to practitioners of the relevant art.

Reviewers may optionally express an opinion regarding claims submitted in the application. The examination process, as we have noted, already puts way too much emphasis on partitioning ownership; there's no need to add more.

It is an interesting question how reviewers for a specific application should be selected, since a reviewer ought to be conversant in the field of interest for the application. Since would-be applicants would be required to register as reviewers, it is possible to also require that they state the fields in which they are knowledgeable, and then have applications recommended by an examiner. The examiner may also look at past filings, or technical publications, by a reviewer to see what areas they work in. These approaches are analogous to peer reviewers selected by journal editors based on past publications. Self-selection is an alternative in the modern internet-based world, but might be usefully accompanied by a brief statement of why a reviewer is qualified to review a specific application, or perhaps a resumé.

Reviewers may cite prior art that they believe to be relevant, just as in the Peer-to-Patent program. As noted in the program evaluation, it is also important that they annotate the cited art to clarify what the examiner might want to look at.

Each review becomes a part of the file wrapper for the application. (That's the official record of the prosecution of a specific patent, and becomes publicly available after publication.) There is no requirement that an examiner take the reviews into account, except that s/he should look at any additional cited art. However, in the event of litigation related to a granted patent from the application, the unedited reviews must be entered as evidence and made available to the jury. Reviewers may be called but shall not be obligated to testify, except to provide an affadavit ensuring that the cited reviews were in fact produced by them.

Note the fact that an applicant MUST be a reviewer addresses the issue of ensuring that patents are indeed reviewed, a concern in the earlier projects. The requirement of review as a precondition for filing also addresses any reticence an employer might have in allowing an employee to review; if they want to file, they have to allow their employees to review.

Disclosure of a patented invention is the price of monopoly. The strange idea that an application should be secret should never have arisen and should be abandoned in any case; it should not be an obstacle to review. Review by people who know what they are reading will help ensure that the invention is actually comprehensively and comprehensibly disclosed. It will help reduce the tendency of applicants to intentionally file before they know how to enable an invention, thus avoiding effective disclosure while securing monopoly rights.

The question of anonymity of reviewers, and of applicants, is a continual challenge and a subject of experimentation in the sciences; there is no reason we should expect the best answer to be immediately apparent for a patent review system. However, in the case of patents, I suggest that there are strong arguments for disclosure and attendant responsibilities. In order to qualify to hold monopolies, a would-be applicant must review. In order to ensure that he or she does so responsibly, they should NOT be anonymous. Disclosure also makes it possible to review qualifications and expose conflicts of interest that might taint their review.

I have proposed that reviewers are not exposed to testimony in litigation, except to confirm that the review in question was in fact produced by them and has not been tampered with, but a good case could be made that reviewers should provide testimony in litigation (presumably being compensated in doing so just as any hired experts are). I can assure the readers, from personal experience, that testifying in civil litigation sucks, at least for people with ethical standards. If this makes people reluctant to review patents, it will then reduce the number of people who can file, which -- if patents are unhelpful to the overall economy, as we previously showed -- could be a good thing.


The great benefit of requiring a record of critical reviews is that, when litigation occurs, a possibly objective examination of the virtues of the patent or patents in use will exist -- something that doesn't happen otherwise. Incomprehensible specifications, specs that don't describe anything useful, or merely contain all the things that any skilled person would try, will be described as such by someone who (we hope) doesn't have a direct interest in the litigation. Ideas that are actually new and important will also get the benefit of such characterization. Peer review, properly conducted, will help create a background understanding of whether something new and useful was usefully disclosed, against which the arguments about what is owned and what is not can take place.

The program as proposed will create a professional obligation for people who wish to be able to file patent applications. There's nothing bad about tying privileges to obligations. If it is administered by professional societies, those societies will benefit, and thus become supporters of the program. If it administered by the USPTO, it will need to be funded, always a challenge.

Naturally, as with any system, people will try to cheat and manipulate the results. Peer review in the sciences has encountered many challenges and has experienced some spectacular failures. We can't expect this to be any easier.

While some of what is outlined above can be accomplished by the USPTO (or equivalent organizations) on their own authority, requirements limiting the ability to file will certainly require legislation, obviously a major challenge in the modern world. International filers will also need to be treated fairly, requiring revisions to existing international agreements, again time-consuming and laborious.

And that's the easy proposal. But if you don't start, you can't finish. More to come.


From Rafael Magri

Today I was reading a book called "The Omnivore's Dilema" and came accross something that I believe could be useful in your line of research (and I don't remember reading about it anywhere else).

In the book, some executive from General Mills is quoted saying that recipes are not intellectual property. So, all you can get is a few months head start with some new product, time enough to establish a brand.

So, if the processes food industry is innovative enough, this fits nicely with the thesis that patents may be unecessary.

How many innovations are patented

Not all innovations are patented, and the question of how many is fundamental to understanding what is going on. Cecil Quillen points us to a careful new paper by R. Fontana, A. Nuvolari, H. Shimizu, A. Vezzulli attaching the issue.

The Times: You Can Get Your Invention on to the Store Shelf; Here's How

The other day, the New York Times published instructions for aspiring inventors on how to take their inventions through the patent granting process and on to the retailers' shelves link here. The examples are a couple of aspiring inventors and describes the pitfalls, the costs, and a rough estimate of the likelihood of success.

In the first example, the invention is a sun shade for a baby's stroller. The problem in this case was the number of thieves waiting to take the aspiring inventor's money without providing any service or charging an arm and a leg for minimal services. First lesson: know your help's history. Second lesson: you have to do a lot of the work yourself; it is hard to write a contract that specifies what is needed and to find a contractor who can provide it.

The second case is an inventor of a screw device to replace the broken one on the ear pieces of eyeglasses. The experience with companies who are selling consulting and other assistance is much the same as in the first case. The upfront costs of patenting and marketing are stiff and the need for added funding, often high.

The article seems to suggest that there is a growing number of successful inventor-developers and leaves the thought that with a bit of effort, you too can succeed. This does not account for the number who failed. Nor does the data cite the proportion that were brought to market by big companies who seem to dominate the marketplace when you shop and who turn out to end up with the patents that make market dominance possible.

ITC Allows Apple Imports That Violate Samsung Patents

The blog, Public Knowledge, argues that the International Trade Commission should consider the public interest in reaching regulatory decisions on patents. The Obama has so decreed when it overruled an ITC case and permitted imports of Apple phones that it had found to violate duly recognized patents of other companies, in this case foreign firms link here.

When I look at the mess in the whole patent system, I see a world of oligopolies and monopolies built on patents, supposedly designed to encourage innovation, but instead creating a self-perpetuating means to paralyze innovation.

I would do away with the whole system of patents, but that isn't going to happen. Too many huge companies have a vested interest in the existing highly profitable system. Instead, those of my persuasion must examine whether the legal change making importation illegal under a finding of public interest is a good thing, rather than allowing the competing imports and slowing Apple's ability to go on coining money. To put it differently, isn't allowing the imports in the public interest? In this case, the big American company was the winner. Who lost?

Public Knowledge announces a Patent Reform Project

I'm late with this but Public Knowledge announced two weeks ago that it was starting a Patent Reform Project link here. Given that we are surrounded with an incredibly expensive and inefficient and now corrupt (with the presence of the patent trolls' extortion) system, it is important for the informed and interested to weigh in.

One cannot be terribly optimistic about the outcome, but to leave the system to the big money and personally interested is to give up. We can do better. Given our democratic system, compromise is essential so one almost never gets all his wishes. But the critics have been making a dent in the unthinking belief that intellectual property was property like physical goods or land and that it always encouraged innovation and thus human progress. It is a right with characteristics like real property, created by law and law can be changed. Now is the time to change it.

Weigh in, please.

Another bad patent--guaranteeing more litigation

Bad patents are an old story, but they keep getting worse. This one is granted for "displaying pictures of athletes on the fields on which their sport is played" link here.

Timothy, in whose name the story is posted at Slashdot.org, sends you to the patent itself, a master piece of overblown legalism and hucksterism link here. Google, to which the patent is granted, should be deeply ashamed. Timothy comments, "Just about anyone that's familiar with sports has seen position and depth charts, in which athletes are portrayed on the athletic fields their sport is played on."

Does the decline in total factor productivity explain the drop in innovation?

In a long post, Mike Masnick calls attention to an e-book by Alex Tabarrok which focuses on the decline in total factor productivity as a measure of the drop in innovation link here. This has occurred despite the huge increase in the number of patents. He concludes that the patent system is broken and suggests some fixes like a mix of patents, some short-term and easy to get and others, long-term and less likely to be granted. Read and ponder.

And then think about the political and economic power of those who oppose such reforms.

earlier posts


Most Recent Comments

Do we need a law? 1. Plagiarism most certainly is illegal, it is called "copyright infringement". One very famous

IIPA thinks open source equals piracy Good post. Thanks for this information. By the way, if students want to get rid of their

Yet another proof of the inutility of copyright. The 9/11 Commission report cost $15,000,000 to produce, not counting the salaries of the authors.

WKRP In Cincinnati - Requiem For A Masterpiece P.S. The link to Amazon's WKRP product page:

WKRP In Cincinnati - Requiem For A Masterpiece Hopefully some very good news. Shout! Factory is releasing the entire series of WKRP in Cincinnati,

What's copywritable? Go fish in court. @ Anonymous: You misunderstood my intent. I was actually trying to point out a huge but basic

Rights Violations Aren't the Only Bads I hear that nonsense from pro-IP people all the

Intellectual Property Fosters Corporate Concentration Yeah, I see the discouragement of working on a patented device all the time. Great examples

Music without copyright Hundreds of businessmen are looking for premium quality article distribution services that can be

Les patent trolls ne sont pas toujours des officines

Les patent trolls ne sont pas toujours des officines

Patent Lawyers Who Don't Toe the Line Should Be Punished! Moreover "the single most destructive force to innovation is patents". We'd like to unite with you

Bonfire of the Missalettes!

Does the decline in total factor productivity explain the drop in innovation? So, if our patent system was "broken," TFP of durable goods should have dropped. Conversely, since

Does the decline in total factor productivity explain the drop in innovation? I wondered about TFP, because I had heard that TFP was increasing. Apparently, it depends on who

Music without copyright I do agree with all the ideas you have presented in your post. They are very convincing and will

Music without copyright It's strange, that sometimes the most simple suggestions are often the most useful! I will take the

Patents on 3D Printing Challenged by Prior Art To Loup Vaillant: "So, you think we wouldn't have had those 9 technologies without patents? I can

Patents on 3D Printing Challenged by Prior Art @anonymous: So, you think we wouldn't have had those 9 technologies without patents? I can accept

Patents on 3D Printing Challenged by Prior Art The fact is that in the last 20-25 years the technologies of rapid prototyping (today known as